Lawrence S.U.azuh Vs Union Bank Of Nig. Plc (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division (lower court) delivered on 25/3/2004 affirming the ex-parte interim orders granted by the High Court of Delta State sitting at Asaba (trial court) on 20/11/2001.

On 20/11/2001, the respondent, as plaintiff at the trial court, took out a writ of summons against the appellant herein as defendant seeking the following reliefs:

(1) A declaration that the defendant having been charged to court in charge No. CMA/250C/2001 pending before the Chief Magistrate Court 1, Asaba, wherein the plaintiff is the substantive complainant must or ought to undergo his trial to conclusion.

(2) A declaration that the defendant having been charged to Court in Charge No. CMA/250C/2001 pending before the Chief Magistrate Court 1, Asaba is not allowed to travel outside the country with the aim of frustrating the criminal trial thereby making it impossible for him to be prosecuted.

(3) An order of injunction restraining the defendant from traveling outside this Country to any other place pending the determination of the substantive suit.

(4) An order directing the sheriff of Court to take possession of the International Passport and other travelling documents of the defendant pending the conclusion of the criminal trial in Charge No. CMA/250C/2001 pending before the Chief Magistrate Court 1, Asaba.

(5) An interlocutory order directing the Nigerian Immigration Service not to allow the defendant to travel outside the country pending the determination of Charge No. CMA/250C/2001 or this suit whichever is the first in time.

(6) An order of perpetual injunction restraining the defendant from leaving the country pending the conclusion of the criminal trial in Charge No. CMA/250C/2001 pending against him at the Chief Magistrate Court 1. Asaba.

It simultaneously filed a motion ex-parte seeking the following orders:

“a) An order of interim injunction restraining the defendant from travelling out of this country and/or place pending the determination of the motion on notice.

b) An interim order directing the sheriff of this Honourable Court to take possession of the International Passport and other travelling documents of the defendant pending the determination of the motion on notice.

c) An interim order directing the Nigeria Immigration Service not to allow the defendant to travel abroad pending the determination of the motion on notice”.

The grounds for the application were set out in paragraphs 3-10, 14 and 16 of the supporting affidavit at pages 8 and 9 of the record as follows:

“3. That the defendant was the Branch Manager of the plaintiff/applicant’s Asaba Branch.

4. That sometime in April, 2001, the plaintiff/applicant reported a case of fraud in Asaba Branch in which the sum of over N89, 958,931.46 (Eighty-Nine Million, Nine Hundred And Fifty-Eight Thousand, Nine Hundred And Thirty-One Naira, Forty-Six Kobo) could not be traced.
5. That the Police on the 29th day of October, 2001 charged the defendant and six others with stealing of N89, 958,931.46 (Eighty-Nine Million, Nine Hundred and Fifty-Eight Thousand, Nine Hundred and Thirty-One Naira Forty-Six Kobo) belonging to the plaintiff/applicant in Charge No. CMA/250/2001. Attached herein and marked Exhibit “A” is the said charge sheet.
6. That defendant voluntarily pleaded to the charges and was ordered to be remanded in prison custody.
7. That I know as a fact that the defendant is currently on bail by virtue of an order made pursuant to an application filed before High Court No. 5.
8. That I also know as a fact that the defendant is making frantic efforts to travel out of the country so as to scuttle the trial of the criminal charges pending against him and six others.
9. That I also know as a fact that the surety to the defendant is also planning to leave the country.
10. That if this application is not granted as a matter of urgency, the defendant will leave this country a situation that will frustrate the criminal charge pending against the defendant at the Chief Magistrate Court 1, Asaba.
11. That the other accused persons charged together with the defendant were granted bail by the Chief Magistrate on condition that they deposit all their travelling documents with the Court and surety that must be resident in Asaba.
12. That if the respondent is put on notice without the interim orders he would abscond and travel out of this Country.”

(Underlining supplied for emphasis)

There is nothing in the printed record to show that the motion on notice referred to in the motion ex-parte was ever filed. It is also noteworthy that the sheriff of Court and Nigeria Immigration Service referred to in reliefs 4 & 5 of the writ of summons and reliefs (b) & (c) of the ex-parte application were not made parties to the suit. The trial court granted the order as prayed on 20/11/2001, the same day the processes were filed and gave a return date of 7/12/2001. The court did not refer to any pending motion on notice. The appellant was aggrieved by the orders made against him without notice and appealed to the lower court vide a notice of appeal filed on 3/12/2001. The appeal was dismissed on 25/3/2004. He has further appealed to this court vide Notice of Appeal filed on 21/4/04 containing 3 grounds of appeal.

The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 25/2/2014, C.O. ERONDU ESQ., of counsel, adopted and relied on the appellant’s brief filed on 5/7/04 and reply brief filed on 10/2/09. In further adumbration of his brief, he submitted that the trial court lacked jurisdiction to grant the interim orders against the appellant without putting him on notice. He argued that the interim reliefs granted amounted to a variation of the bail conditions granted by the High Court, a court of coordinate jurisdiction. He urged the court to allow the appeal.

L.O. EGBOYI ESQ., of counsel, adopted and relied on the respondent’s brief settled by CHIEF E.L. AKPOFURE, SAN. It was filed on 8/12/04 but deemed properly filed and served on 9/4/2008. Expatiating on the submissions contained in the said brief, L.O, EGBOYI ESQ., submitted that by virtue of Order 8 Rule 7 (2) of the High Court (Civil Procedure) Rules 1988 of the defunct Bendel State, then applicable in Delta State (henceforth referred to as the High Court (Civil Procedure) Rules), the High Court was empowered to grant orders ex-parte. He contended that in the circumstances it would be wrong to say that the court lacked jurisdiction to grant the orders. He also observed that the appellant failed to take advantage of the provisions of Order 8 Rule 11 of the said rules, which permits any party who is dissatisfied to apply to set aside the order within seven days of the order. He further argued that it is the Nigeria Immigration Service, which is affected by one of the orders made, that has the locus to complain about it. He observed that there is no complaint from that organisation. He urged the court to dismiss the appeal.

In reply, C.O. ERONDU ESQ., of counsel, submitted that the appellant was entitled to elect which option to pursue and that he chose to appeal rather than apply to have the orders set aside.

In his brief of argument the appellant formulated two issues for determination, which were adopted by the Respondent. They are as follows:

1. Whether the learned Justices of the Court of Appeal were right in holding that the learned trial judge had jurisdiction to grant the interim orders of injunction against the appellant.
2. Whether the Learned Justices of the Court of Appeal were right in holding that the Respondent made out a case for the grant of the interim orders of injunction in its favour.

Learned counsel for the respondent contended that the appellant did not distil any issue from ground 2 of the notice and grounds of appeal and that the said ground should be deemed abandoned. The grounds of appeal without their particulars are as follows:

1. The learned justices of the Court of Appeal erred in law in holding that the High Court had the jurisdiction to make the interim orders of injunction.
2. The learned Justices of the Court of Appeal erred in law in holding that the appellant had no locus standi to complain that the interim relief against the Nigeria Immigration Service (a non-party) was a nullity.
3. The learned Justices of the Court of Appeal erred in law in holding that the plaintiff/respondent made out a case for the interim reliefs on the strength of its unchallenged affidavit evidence.

I have closely examined the grounds of appeal and I am of the considered view that the appellant’s issue 1, which deals with the issue of jurisdiction encompasses both grounds 1 and 2 of the notice of appeal. The contention that ground 2 has been abandoned is therefore misconceived. I shall now proceed to consider the merits of the appeal.

In support of the first issue, C.O. ERONDU ESQ., learned counsel for the appellant argued that the learned Justices of the lower court were wrong in holding that the learned trial judge had the jurisdiction to grant the interim orders of injunction. He submitted that the respondent was the substantive complainant in charge, No. CAM/250c/2001 pending at the Chief Magistrate’s Court 1 Asaba, against the appellant. He noted further that the charge was not the subject of a private prosecution. He submitted that the respondent had no right to seek the interim reliefs bearing in mind the fact that a complainant in criminal proceedings is not a party to the proceedings but only a witness. He referred to: Nitel Plc V. Emmanuel O. Awala (2003) 3 NWLR (Pt. 753) 1. He submitted that since the respondent had averred in paragraph 7 of his supporting affidavit that the appellant had already been granted bail by High Court 5, Asaba, a court of coordinate jurisdiction, the learned trial judge ought to have been reluctant to accede to the respondent’s prayers. He submitted further that the learned Justices of the lower court erred in affirming the decision. He submitted that the State is in control of criminal proceedings at the Magistrate Court and is a party to the bail application. That it was its exclusive responsibility to apply for the revocation or variation of the bail conditions granted the appellant in the event of any default on his part. He referred to Sections 131 and 132 of the Criminal Procedure Law of Bendel State as applicable to Delta State. He contended that the respondent used the interim reliefs to vary the appellant’s bail conditions.

Learned counsel argued that a complainant has no civil right or obligation to protect under criminal jurisprudence. He submitted that the only duty of a complainant is to lodge a complaint with the police. He submitted further that the power of the police to arrest, investigate and prosecute a case does not in law ripen into an agency relationship. He contended that once the complainant goes beyond the report and attempts to influence the police, the Law adjudges him to have set the law in motion against the suspect and he would be liable to a cause of action in false imprisonment and malicious prosecution. He referred to: Mandilas & Karaberis Ltd V. Apena (1969) NMLR 199; Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18; Sunday Olesugun Olusemo V. Commissioner of Police (1998) II NWLR Pt. 575, 547, 558.

Referring to Order 15 of the High Court (Civil procedure) Rules, C.O. ERONDU ESQ., of counsel, submitted that a party may exercise a right of action in civil proceedings by an interlocutory application to arrest an absconding defendant or for the defendant to furnish security for costs to ensure the satisfaction of the judgment sum whose recovery is the subject of a pending action, Referring to the finding of the lower court to the effect that there is a pending civil proceeding in which the exercise of a legal right called for determination, he submitted that the civil right or obligation of the respondent in respect of the recovery of its funds allegedly stolen was not the cause of action in the proceedings before the trial court. He submitted that the grant of interim reliefs by the trial court, which amounted to a review of the bail conditions already granted by a court of coordinate jurisdiction, was a gross abuse of process and should not have been allowed to stand. He relied on: Arubo V. Aiyeleru (1993) 3 NWLR Pt. 280, 126; Augustine Oyubu V. Francis Akpobarojero (1998) 4 NWLR (Pt 546) 436.

With regard to relief (c) of the motion ex-parte, by which the Nigeria Immigration Service was directed not to allow the appellant to travel abroad pending the determination of the motion on notice, learned counsel argued that it was aimed at infringing the appellant’s right to freedom of movement as enshrined under Section 41 (1) of the 1999 Constitution (as amended). He submitted that in the circumstances, contrary to the view expressed by the lower court, the appellant in fact had the locus to challenge the order. In further support of this contention he submitted that it is settled law that a “person aggrieved” is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly refused him something or wrongfully affected his title to something. He cited the case of: Societe Generale Bank (Nig) Ltd V. Afekoro (1999) II NWLR (Pt. 628) 521 @ 537. He also submitted that it is a general principle of law that an injunction of whatever type (interim, interlocutory or perpetual) should not be granted against a person who is not a party to litigation and any such order, if made, becomes a nullity. He relied on: Pan African Bank Ltd v. The State (1997) 4 NWLR (Pt. 499) 296: Onyekwulunne v. Ndulue (1997) 7 NWLR (Pt. 512), 250 @ 280.

Learned counsel observed that the lower court delved into the constitutionality of ex-parte proceedings, which was not an issue canvassed before it. Relying on the authority of; Directors SSS V. Olisa Agbakoba (1999) 3 NWLR pt. 595 314, 370, 371, he urged the court to set aside the decision of the lower court on this issue.

In reaction to the above submissions, CHIEF E.L. AKPOFURE, SAN submitted that the law casts a duty on every court to preserve the res of any case. He submitted that the failure of the court to preserve such res has been held to be an abdication of duty on the part of such court, He relied on: Kigo (Nig,) Ltd V. Holman Bros. (Nig.) Ltd. (1980) 3-4 SC 60 @ 70; (1980) 5-7 SC (Reprint) 41 @ 47. For the definition of “res” as held by this court, he referred to: Buhari v. Obasanjo (2004) FWLR (pt. 191) 1487 @ 1519 A. He submitted that “res” generally refers to the subject matter of the right complained of by the applicant. He contended that the appellant’s physical presence and the need for him to undergo his trial in respect of the criminal charge against him constitutes the res in the case before the trial court. He referred to the reliefs set out in the writ of summons. He reproduced order 8 Rule 7 (2) of he High Court (Civil Procedure) Rules and submitted that, by virtue of the said order, the trial court has statutory jurisdiction to grant interim orders of injunction and that the application before the trial court fell squarely within the aforesaid provisions.

With regard to the contention that the respondent lacked the locus standi to institute the action before the trial court, learned Senior Counsel submitted that relief (1) of the writ of summons, which is the substantive relief in the suit, adequately shows the standing of the respondent as “the substantive complainant” in the criminal charge pending against the appellant in Charge No. CMA/250C/2001 pending before the Chief Magistrates Court 1, Asaba. He noted that all the other reliefs are ancillary to the main relief. He was of the view that the copy of the 14- count charge sheet annexed to the affidavit in support of the ex-parte application further strengthened the respondent’s position. He submitted that the respondent was entitled to the reliefs sought in the application notwithstanding the fact that only declaratory reliefs are sought in the suit before the trial court. He relied on: Owodunni V. Regd, Trustees. Celestial Church (2000) FWLR (pt. 9) 1455 @ 1496 A to the effect that a plaintiff who claims only declaratory reliefs would have the necessary locus standi to prosecute his claim as long as he pleads sufficient interest in the subject matter of the suit. In the instant case, it is the contention of the learned senior counsel that the colossal amounts referred to in the charge against the appellant belong to the respondent. He submitted that in the circumstances the lower court was correct when it held that the declaratory reliefs sought by the respondent are covered by the provisions of Sections 6 (6) and 272 of the 1999 constitution (as amended). He submitted that the authorities of NITEL Plc. Vs Emmanuel O. Awala (supra) and others relied upon by the appellant are not applicable to the facts of this case.

On the contention that the suit is an abuse of process, Learned Senior counsel argued that learned counsel for the appellant is of the erroneous view that suit No. A/188/2001 is the same as charge No. CMA/250c/2001. He submitted that it would be wrong in law to have deferred proceedings in suit No. A/188/2001 until the conclusion of criminal proceedings or prosecution in Charge No. CMA/250C/2001. He retied on: Ogboru V. Ibori (2004) ALL FWLR (pt. 225) 173 @ 196-197 G-C and urged the court to hold that the suit before the trial court is not an abuse of the process of court.

In conclusion, he submitted that the parties necessary for, the effective and effectual determination of the matter before the trial court were present. He contended that it is not sufficient, nor does it lie in the mouth of the appellant, to say that non-joiner of the Nigeria immigration Service robbed the trial court of its jurisdiction. He noted that the Nigeria Immigration Service was only directed by the order of the trial court to do a specified act without any prejudice to its interest. He submitted that, assuming without conceding that its right or interest was adversely affected by the order, the only course of action for the Nigeria Immigration Service is to apply to set aside the order or to appeal against it. He referred to: 7-up Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (pt. 383) 257 @ 280-291 D-B. He was of the considered view that the failure of the Nigeria Immigration Service to exercise any of the options referred to is a clear indication that the order of the trial court was properly made. He urged the court to resolve this issue against the appellant.

In reply to the submissions of learned Senior Counsel for the respondent, learned counsel for the appellant submitted that there was a misconception as to whether the appellant is seeking the deferment of the civil proceedings at the High Court pending the determination of the criminal proceedings before the Chief Magistrates Court, Asaba. He maintained that the appellant’s position is that the interim and substantive reliefs sought by the respondent are merely a ploy to vary, stiffen and/or revoke his bail conditions, which only the court that granted the bail in the first place has jurisdiction to do. He submitted that varying of bail conditions cannot be the subject of civil proceedings and that in any event such an application could only be brought by the State and not the complainant.

In determining this appeal, an appropriate place to start would be the nature of interim and interlocutory injunctions and circumstances in which they could be granted ex-parte. The locus classicus on the issue is the case of: Kotoye V. C.B.N. (1989) 1 NWLR (Pt.98) 419 @ 440 C – D where this court held as follows:

“I think it is correct to say that “ex parte” in relation to injunction is properly used in contradistinction to “on notice” – and both expressions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a non-permanent injunction may bring the application ex parte, that is without notice to the other side or with notice to the other side, as is appropriate. By their very nature, injunctions granted on ex-parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in status quo to a named date, usually not more than a few days, or until the respondent can be put on notice. The rationale of an order made on such an application is that the delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on “real”.”

At pages 441 B, 442A-B & 447 E – F (supra):

“Applications for interlocutory injunctions are properly made on notice to the other side to keep matters in status quo until the determination of the suit.

… Interim injunctions, on the other hand, while often showing the trammels of orders of injunction made ex parte are not necessarily coterminous with then. Their main feature which distinguishes them from interlocutory injunctions is that they are made to preserve the status quo until a named date, or until further order or until an application on notice can be heard.

… It is settled that a person who seeks an interim order ex parte while also applying for an interlocutory injunction files two motions, simultaneously, one ex parte asking for the interim order, and the other one on notice applying for an interlocutory injunction. The court before whom the applications comes takes the ex parte motion, and if satisfied that it has merit ex facie, grants it making the order to the date when the motion on notice shall be heard. Parties and their counsel ought not to be encouraged to file and argue a sole application ex parte when asking for orders which can only be properly made on notice.”

It is also well settled that an order of injunction is usually granted to protect a part’s existing legal right from invasion by another. See: Akapo V. Hakeem-Habeeb (1992) 7 SCNJ 119, Orji v. Zaria Industries Ltd. (1992) 1 SCNJ 29; Universal Trust Bank Ltd, & Ors. V. Dolmetsch Pharmacy (Nig.) Ltd. (2007) 6 SC (Pt. I) 1; (2007) 16 NWLR (Pt.106) 520.

There is no doubt that the power to grant an interim or interlocutory order of injunction is one of the inherent powers of a court of law for the enhancement of the administration of justice. By virtue of the powers conferred on the High Court by Section 6 (6) (a) of the 1999 Constitution (as amended) and the provisions of Order 8 Rule 7 (2) of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable in Delta State, the High Court has the power to grant an ex-parte order of interim injunction upon the fulfillment of certain conditions. There is also no doubt, as argued by the learned Senior Counsel for the respondent, that the court has a duty to preserve the res or subject matter of litigation. The grant of an order of interim or interlocutory injunction is an equitable remedy within the discretionary powers of the court. As with all exercise of discretion, the power must be exercised judicially and judiciously, taking all relevant circumstances into account.

Now, applying the above stated principles to the facts of this case, the first issue to consider is the nature of the right sought to be protected by the grant of the order or the subject matter of litigation to be kept in status quo pending the determination of the motion on notice. Learned counsel for the respondent drew the court’s attention to relief (1) of the writ of summons, which he described as the principal relief. Although it has been reproduced earlier in this judgment it is necessary to repeat it here for ease of reference. It reads:

“A declaration that the defendant having been charged to court in charge No. CMA/250C/2001 pending before the Chief Magistrate Court 1, Asaba, wherein the plaintiff is the substantive complainant must or ought to undergo his trial to conclusion.”

The first observation in respect of this relief is that it refers to a criminal charge pending against the appellant at the Chief Magistrate’s Court 1, Asaba. It is clearly therefore not in respect of proceedings pending before the High Court. Secondly, the respondent is seeking a declaration that the appellant must undergo his trial before the said Chief Magistrate’s Court to conclusion. What is the subject matter of the dispute before the High Court I am at pains to find it. As rightly observed by learned counsel for the appellant although the respondent is the complainant in the charge before the chief Magistrates court, it has not shown the right it seeks to protect by the suit before the trial court. It is significant that there is no pending civil suit between the appellant and the respondent aimed at recovering the alleged missing sum of money.

It is also trite that an application for an order of injunction is usually granted pending the determination of the substantive suit, or the determination of an application pending before the court before which the application is made. The reliefs sought in the ex parte application are predicated upon the reliefs set out in the writ of summons. A careful perusal of the printed record of appeal shows that although the reliefs in the ex parte application are sought pending the determination of a motion on notice, there is no evidence that there was indeed a motion on notice filed along with the ex parte application that was pending before the court. Indeed there is no evidence that a motion on notice was filed simultaneously with the motion ex parte. When the learned trial Judge adjourned the proceedings after granting the ex parte orders on 20/11/2001, he merely gave a return date of 7/12/2001 without reference to any pending application.

What all these facts reveal is that the purpose of the ex parte application was to restrain the appellant from travelling out of the country pending the determination of the charge before the Chief Magistrates Court, Asaba and not to protect any existing right pending the determination of proceedings before the High Court. There was no status quo to be maintained by the parties to Suit No. A/188/2001, as there was no cause of action.

There is no doubt that the appellant is facing grave and weighty charges at the Chief Magistrates Court 1, Asaba. The alleged missing sum of N89, 958,931.46 is said to belong to the respondent who made the complaint that led to the arrest and prosecution of the appellant. Notwithstanding the fact that individuals or corporate entities may be victims of crimes, the power to institute criminal proceedings resides in the Attorney-General of the Federation or of a State, as the case may be by virtue of Sections 174 and 211 of the 1999 Constitution (as amended). Such power may be exercised by the Attorney-General himself or through any officers of his department. In appropriate circumstances, the Attorney-General may instruct a private legal practitioner to appear on his behalf. See: F.R.N. V. Adewunmi (2007) 10 NWLR (Pt.1042) 399; (2007) 4 SC (Pt.III) 30: F.R.N. Vs Osahon (2006) 5 NWLR (Pt.973) 361. Customarily, initiation and prosecution of criminal proceedings before the Magistrates Courts is done by the Police pursuant to powers conferred on it by Section 23 of the Police Act. The powers are subject to Sections 160 and 174 (1) of the 1999 Constitution. See: F.R.N. Vs. Osahon (supra). The point being made here, as submitted by learned counsel for the appellant, is that only the parties mentioned above, have the locus to make any application in respect of pending criminal proceedings. The fact that the respondent is the “substantive complainant” in the proceedings before the Chief Magistrates Court, Asaba, does not confer any fight on it to initiate any process in its own name in relation to the said charges before that court or before the High Court.

Where criminal charges are pending against an accused person, his right to freedom of movement pending the determination of the case may be curtailed by the court seised of the matter or by a higher court, depending on the nature of the offence. By the averment in paragraph 7 of the affidavit in support of the motion ex parte, the appellant had been granted bail by Court No. 5 of the same High Court. The enrolled order in respect thereof does not form part of the record before us. However, it is evident, from the reliefs sought, that the respondent was not satisfied with the bail conditions granted by that court, which led to the institution of the suit that gave rise to this appeal, whose sole purpose was to have the bail conditions varied by making them more stringent, and specifically to ensure that the appellant remained within the country for the duration of his trial. In view of a subsisting order granting bail to the appellant by a court of co-ordinate jurisdiction, did the trial court have the jurisdiction to vary the said order, or to sit on appeal over that order The position of the law as stated by this court in: Witt & Busch Ltd, V. Dale Power Systems Plc, (2007) 17 NWLR (Pt.1062) 1; (2007)15 – 6 SC 121, per Ogbuagu, JSC, is as follows:

“… in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction…. The rationale or reason for this is that there is only one High Court in a State.”

See: Amanabu V. Okafor (1966) 1 ALL NLR 205 @ 207; Uku Vs Okumagba (1974) 1 ALL NLR (Pt. 1) 475; Wimpey (Nig.) Ltd. V. Balogun (1986) 3 NWLR (Pt.28) 324 @ 331, cited with approval in Witt & Busch Ltd, V. Dale Power Systems Plc, (supra).

In the case of N.I.M.B. Ltd, Vs U.B.N. Ltd, (2004) 12 NWLR (Pt.888) 599, a situation arose where the appellant instituted an action at the High Court of Lagos State against the 2nd respondent (West African Marine Products Ltd.) for the recovery of a sum of money or the security, which consisted of assorted frozen fish imported with an overdraft facility granted by the appellant’s bank. The High Court granted an ex-parte application granting the appellant leave to take possession of, remove and sell the entire stock of fish stored in the cold room of the 2nd respondent, including injunctive reliefs against the 2nd respondent. After the order was made, the 1st respondent (Union Bank of Nig. Ltd.) filed an action at the Federal High Court in respect of the same fish, subject of the High Court order and applied for an order of injunction restraining the 2nd and 3rd respondents, who were defendants in the suit at the Federal High Court from tampering with, disposing of or further selling the total quantity of fish stored in the 2nd respondent’s cold room/warehouse. It also sought injunctive reliefs restraining the 2nd and 3rd respondents from interfering with the duties of the receiver/manager. The Federal High Court made an order restraining the 2nd and 3rd respondents from disturbing, harassing, intimidating or in any manner whatsoever interfering with the performance of the duties of the receiver/manager pending the determination of the motion on notice. The appellant appealed against the order of the Federal High Court, which appeal was dismissed. On further appeal to this Court, in allowing the appeal, His Lordship, Pats-Acholonu, JSC had this to say at page 621 – 622 H – D (supra):

“The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty … of the law is that just as stare decisis exercises a restraining influence on our courts, so too do discipline in the courts in dutifully adhering to normative order by which courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law.”

Per Uthman Mohammed, JSC at page 622 F (supra):

“That order made by the Federal High Court ought not to have been made after its attention was drawn to the extant order of the Lagos High Court.”

In the instant case, having drawn the court’s attention in paragraph 7 of the affidavit in support to the fact that High Court No. 5, Asaba had already granted the appellant bail, the trial court had no jurisdiction to entertain the application for the ex parte interim orders, which had the effect of varying the bail conditions already granted by a court of concurrent or co-ordinate jurisdiction. The proper procedure should have been an application by the prosecution (not the respondent) to the court that granted bail to vary the bail conditions. The question posed earlier must therefore inevitably be answered in the negative.

With regard to relief (c) of the ex parte application, it is contended by the appellant that the order in respect thereof, which was granted against the Nigeria Immigration Service, a party who was not joined in the proceedings, is a nullity. The respondent, as noted earlier, contends that it is the aggrieved party who should complain and not the appellant. The lower court agreed with the respondent. The position of the law is that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the court to adjudicate on the matter before it. See: Okoye V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SC (Pt.III) (Reprint) 33 @ 56; Green V. Green (1987) 3 NWLR (60) 480. However, an order made against a person who was not a party to the action before the court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action. See: Uwazurike & Ors, v. A.G. Federation (2013) 4-5 SC (Pt.1) 90 @ 119 lines 16-21; (2013) LPELR-20392 (SC) 1 @ 24, per Fabiyi, JSC; Uku V. Okumagba (supra).

In the instant appeal, it is correct to say that the appellant cannot raise the issue of non-joinder on behalf of the parties to whom the orders are directed.

However he has shown his locus in the circumstances of the present case, to complain against the orders made, as the said orders, particularly the one directed to the Nigeria Immigration Services, if enforced, would affect his right to freedom of movement.

In the final analysis, this issue must be answered in the negative and is hereby resolved in the appellant’s favour on the ground that the trial court had no jurisdiction to grant reliefs that had the effect of varying the bail conditions already granted by a court of co-ordinate jurisdiction.

Having resolved the first issue in the appellant’s favour, the second issue has become academic and is hereby struck out. The appeal therefore succeeds and is hereby allowed. The judgment of the lower court delivered on 25/3/2004 is set aside. The ex-parte order of interim injunction made on 20/11/2001 by the trial court is also set aside. The entire suit no. A/188/2001 before the High Court of Delta State, Asaba Judicial Division is struck out.

It is most unfortunate that because of the pendency of the appeals to the lower court and to this court, an ex-parte order of interim injunction, meant to last for just a few days, has remained in place for 13 years, when an application pursuant to Order 8 Rule 11 of the High Court (Civil Procedure) Rules, which provides that an application to set aside the order may be brought within 7 days of the order, would have disposed of the matter a long time ago. The parties shall bear their respective costs in the appeal.

---

SC.71/2004